These bills would prevent federal agencies, including the Federal Communications Commission
(FCC), from proposing or finalizing any major rules between the Presidential election day,
and inauguration day, unless the sitting President is re-elected.

These bills would provide that "an agency may not propose or finalize any
midnight rule that the Administrator of the Office of Information and Regulatory
Affairs of the Office of Management and Budget finds is likely to result in --
(1) an annual effect on the economy of $100,000,000 or more; (2) a major
increase in costs or prices for consumers, individual industries, Federal,
State, or local government agencies, or geographic regions; or (3) significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to compete with
foreign-based enterprises in domestic and export markets."

Rep. Ribble stated in a
release
that these bills "will serve as a levee to protect job creators against a flood of new
regulations imposed by officials with no accountability to the American public".

Sen.
Johnson (at right) stated in a
release that "Significant regulatory actions should be proposed and put in place
before Election Day. Too often, Presidents wait until after the voters have spoken to impose
new and costly rules -- rules that the people ought to know about before going to the polls.
This bill ensures that except for some specific circumstance, new major regulations will not
be imposed once a President has become a lame duck."

The full House passed HR 3309
[LOC |
WW], the "Federal
Communications Commission Process Reform Act of 2012", on March 27, 2012. That bill would
affect FCC rulemaking. However, it would not affect rulemaking by the FCC under lame duck
Presidents. It would impose additional requirements upon the FCC when it adopts rules with
an "economically significant impact".

Moreover, the HR 3309 definition of "economically significant impact"
mirrors HR 4607. HR 3309's definition is "an effect on the economy of
$100,000,000 or more annually or a material adverse effect on the economy, a
sector of the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities".

If Mitt Romney were to defeat Barack Obama in the Presidential election in November, then
Democratic appointees at many federal agencies would likely adopt rules that these bills are
intended to block. Hence, these bills have the support of many Congressional Republicans, but
not Congressional Democrats, and President Obama has incentives to veto these bills. In the
next Congress, if Romney were elected President, Congressional Republicans would no longer
have the same incentives to pass bills like these.

House Passes DATA Act

4/25. The House passed HR 2146
[LOC |
WW], the
"Digital Accountability and Transparency Act", or DATA Act, by voice
vote under suspension of the rules. See,
manager's amendment [51 pages in PDF]. The Senate has yet to pass this bill.

This bill is intended to increase transparency in federal government spending. It would
provide for the creation of financial data reporting standards for federal agencies and
recipients of federal funding.

It would create a five member bipartisan Federal Accountability and Spending Transparency
Commission, or FAST Commission, which would be "responsible for the collection, storage,
and public disclosure of information about Federal spending". It would also be responsible
for "Standardizing common data elements and data reporting standards to foster transparency
and accountability for Federal spending". It would also oversee the online publication
of federal spending data in a successor web site to USASpending.gov.

4/25. The House Rules Committee (HRC) adopted a
rule [PDF] for consideration of HR 3523
[LOC |
WW],
the "Cyber Intelligence Sharing and Protection Act of 2011" or
"CISPA", on Wednesday, April 25, 2012.

This bill would enhance cyber security efforts by enabling more information
sharing. It would also leverage this information sharing process to broadly
expand surveillance activities unrelated to cyber security.

The House is scheduled to begin consideration of the CISPA on Thursday, April
26, 2012, and finish on Friday, April 27.

This rule provides for consideration of a
base bill [18 pages in PDF], and makes in order 16 amendments.

Greg Nojeim of the Center for Democracy and Technology
(CDT) stated in a
short piece on April 25 that the HIC "has agreed to support certain amendments that
will improve CISPA in terms of privacy and civil liberties. However, the Committee-supported
amendments leave two key issues unresolved -- the flow of information to the super-secret
National Security Agency and the broad purposes for which that information can be used."

The CDT announced late on April 25 that since the HRC has not made in order
key amendments, the CDT opposes the bill.

What Use Can Government Make of Shared Information? This remains one of the most
controversial aspects of the bill.

The base bill provides as follows:

"The Federal Government may use cyber threat information shared with the Federal
Government in accordance with subsection (b) for any lawful purpose only if -- (A) the use of
such information is not for a regulatory purpose; and (B) at least one significant purpose of
the use of such information is -- (i) a cybersecurity purpose; or (ii) the protection of the
national security of the United States."

This is broad.

Rep. Rogers and Rep. Ruppersberger
(at right) announced their
joint release on April 24 that they
have agreed to an amendment that they state would "significantly tighten the bill's
current limitation on the Federal Government’s use of cyber threat information".

However, the new language continues to allow broad use, including use unrelated to cyber
security.

This amendment
would provide that "The Federal Government may use cyber threat information shared with
the Federal Government ... for cybersecurity purposes ... for the investigation and prosecution
of cybersecurity crimes ... to protect the national security" and to investigate and
prosecute a wide range of crimes, including pornography crimes.

Rep. Zoe Lofgren (D-CA) submitted an
amendment
(number 25) to the HRC that was not made in order. It would have provided the following
limitation:

"The Federal Government may use cyber threat information shared with the
Federal Government in accordance with subsection (b) for any lawful purpose only
if -- (A) for a cybersecurity purpose; or (B) for a law enforcement purpose, on
approval by a court of competent jurisdiction of an application made by the
Federal Government -- (i) that such information was originally used for a
cybersecurity purpose; (ii) that there is probable cause to believe that an
offense described in subsection (1) or (2) of section 2516 of title 18, United
States Code, has been committed; and (iii) that the information is relevant and
material to an investigation of such offense."

18 U.S.C. § 2516 pertains to
"Authorization for Interception of Wire, Oral or Electronic Communications", and
lists the predicate offenses for the issuance of an intercept order.

Rep. Lofgren also released a
list of her "Key Concerns" with the CISPA. She wrote that "CISPA would
override all other federal and state privacy laws, and allow a private company to share
nearly anything -- from the contents of private emails and Internet browsing history to
medical, educational and financial records -- as long as it "directly pertains to"
a "cyber threat," which is broadly defined."

What Information Can Companies Give to the Government? The base bill contains a
definition of "Cyber Threat Information", which can be shared with the government.

Rep. Rogers and Rep. Rupperberger announced their
joint release
that they have agreed to an amendment that they state would "tighten the bill's
definitions to narrow what cyber threat information may be identified, obtained,
and shared".

This amendment
that would replace the definition of "Cyber Threat Information", to provide that it
means (1) "a vulnerability of a system or network of a government or private entity",
(2) "a threat to the integrity, confidentiality, or availability of a system or network of
a government or private entity or any information stored on, processed on, or transiting such a
system or network, (3) "efforts to degrade, disrupt, or destroy a system or network of a
government or private entity", or (4) "efforts to gain unauthorized access to a system
or network of a government or private entity, including to gain such unauthorized access for the
purpose of exfiltrating information stored on, processed on, or transiting a system or network
of a government or private entity".

But, it would not include "information pertaining to efforts to gain
unauthorized access to a system or network of a government or private entity
that solely involve violations of consumer terms of service or consumer
licensing agreements and do not otherwise constitute unauthorized access".

To What Government Agencies Can Companies Give Information? The base
bill allows companies to share information with the "Federal Government".

Rep. Lofgren wrote in her list of "Key Concerns" that "Other
information sharing bills would direct private information from domestic sources
to civilian agencies, such as the Department of Homeland Security. CISPA
contains no such limitation. Instead, the Department of Defense and the NSA
could solicit and receive information directly from American companies, about
users and systems inside the United States."

However, Rep. Rogers and Rep. Rupperberger announced no concessions on this
issue. Moreover, the HRC did not make in order key amendments that would allow
the full House to vote on this issue.

Rep. Jan Schakowsky (D-IL) and
Rep. Loretta Sanchez (D-CA)
submitted an
amendment (number 19) to the HRC that was not made in order. It would have
provided that "Federal Government" does not include the Department of Defense
(DOD), National Security Agency (NSA), or any of the five armed services.

Rep. Schakowsky (at right) is
the only member of the HIC who voted against the bill in Committee.

Rep. Bennie Thompson (D-MS) and others submitted an
amendment
(number 21) to the HRC that was not made in order. It would have replaced the words "Federal
Government" with "Department of Homeland Security or another civilian agency".

Rep. Mick Mulvaney (R-SC) offered an
amendment
(number 29) that the HRC made in order that would sunset the provisions of the bill after
five years.

Rep. Justin Amash (R-MI)) offered an
amendment (number 33) that the HRC did make in order that would provide that
the government cannot make use of the following information shared pursuant to
this bill: "Library circulation records ... Library patron lists ... Book sales
records ... Book customer lists ... Firearms sales records ... Tax return
records ... Educational records ... Medical records".

Rep. John Conyers (D-MI) offered an
amendment (number 30) that the HRC did make in order that revises the
provision regarding "Exemption from Liability" for sharing information. It would
delete immunity from criminal prosecution, but retain immunity from civil suit.

Select Other Amendments Not Made in Order.

Rep.
Adam Schiff (D-CA) (at right), a member of the HIC, submitted an
amendment (number 26) to the HRC that was not made in order. It contains
several changes to the base bill. It would narrow the use government could make
of shared information. It would also require the DHS to "develop and periodically
review policies and procedures governing the receipt, retention, use, and
disclosure" of information shared pursuant to this bill.

He stated in a
release that "I believe that my amendment would narrowly tailor the bill to its purpose
of protecting us from attacks on our cyber infrastructure and protecting trade secrets while
protecting the privacy and civil liberties of ordinary Americans."

Obama EOP Opposes CISPA

4/25. The Executive Office of the President (EOP) released a
statement in opposition to the HR 3523
[LOC |
WW], the
"Cyber Intelligence Sharing and Protection Act of 2011" or "CISPA".

The statement, titled "Statement of Administration Policy" or SAP, preceded the
House Rules Committee's (HRC) adoption of a
rule
[PDF] that makes in order amendments that address criticisms contained in the SAP.

The SAP states that "the Administration strongly opposes H.R. 3523, the Cyber
Intelligence Sharing and Protection Act, in its current form", and "if H.R. 3523
were presented to the President, his senior advisors would recommend that he veto the
bill".

"The sharing of information must be conducted in a manner that preserves Americans'
privacy, data confidentiality, and civil liberties and recognizes the civilian nature of
cyberspace." The SAP continues that the bill repeals "important
provisions of electronic surveillance law without instituting corresponding
privacy, confidentiality, and civil liberties safeguards".

The SAP adds that the bill "effectively treats domestic
cybersecurity as an intelligence activity and thus, significantly departs from
longstanding efforts to treat the Internet and cyberspace as civilian spheres."

"We would also draw the White House's attention to the substantial package of
privacy and civil liberties improvement announced yesterday which will be added
to the bill on the floor."

"The SAP was limited to the bill in ``its current form´´ -- however, as the bipartisan
managers of the bill announced yesterday -- they have agreed to a package of amendments that
address nearly every single one of the criticisms leveled by the Administration, particularly
those regarding privacy and civil liberties of Americans."

Judicial Appointments

4/25. President Obama nominated Terrence Berg to be a Judge of the U.S. District
Court for the Eastern District of Michigan. See, White House news office
release and
release.

4/25. President Obama nominated Shelly Dick to be a Judge of the U.S.
District Court for the Middle District of Louisiana. See, White House news office
release and
release.

4/25. President Obama nominated Lorna Schofield to be United States District Judge
for the Southern District of New York. See, White
House news office
release and
release. She has worked for the law firm of Debevoise & Plimpton since 1988.

More News

4/24. Rep. Eddie Johnson (D-TX) and
other Democrats introduced HR 4483
[LOC |
WW], the
"Broadening Participation in STEM Education Act", a bill pertaining to
National Science Foundation (NSF) grants related to
university science, technology, engineering, and mathematics (STEM) education, and
underrepresented minority groups at institutions of higher education. It was referred to the
House Science Committee (HSC).

4/24. The U.S. Department of Justice (DOJ) announced
in a release that it
has "intervened in a lawsuit against Japanese company, Toyo Ink Manufacturing Co. Ltd.
and its U.S. subsidiaries", Toyo Ink International Corp., Toyo Ink America LLC, and Toyo
Ink Manufacturing America LLC. The complaint alleges that these
companies misrepresented the country of origin on documents presented to U.S. Customs and
Border Protection to avoid paying antidumping and countervailing duties. Toyo Ink International
responded in a
release that "We are disappointed by today's announcement by the Department of Justice
that it is intervening in a whistleblower lawsuit initiated by a Toyo Ink competitor. The
whistleblower allegations that Toyo Ink engaged in any fraudulent activity are false and appear
to be driven by business considerations rather than facts. Toyo Ink has a substantial presence
in the US, including multiple production facilities and administrative offices providing
meaningful employment opportunities for US workers. ... Toyo Ink expects its conduct to be
fully vindicated by the court and regrets the competitor’s attempts to gain an unfair
competitive advantage over Toyo Ink by initiating this unfounded lawsuit." Toyo Ink
makes printing ink, including for film printing, paper printing, printed circuit boards (PCBs),
flexible printed circuits (FPCs), RFID antennas and EMI shields.

Rep. Lofgren Announces Key Concerns with
CISPA

4/23. Rep. Zoe Lofgren (D-CA), who
represents a Silicon Valley district, released a
document that lists her "Key Concerns" with HR 3523
[LOC |
WW], the
"Cyber Intelligence Sharing and Protection Act of 2011" or "CISPA".

She stated in a
release on April 23 that "Our country faces a serious challenge in securing
both public and private networks from a wide variety of attacks. I would support
narrowly-drafted legislation that allows the government and the private sector
to share information when truly necessary for cybersecurity purposes, as long as
it also includes robust privacy protections."

"Unfortunately", wrote Rep. Lofgren, "CISPA as currently drafted does not
meet these criteria and therefore I cannot support it in its current form. I made suggestions
to improve the bill to safeguard the privacy and due process rights of all Americans."

However, on April 24, the House Rules
Committee (HRC) did not make in order her
amendment
(number 25) that would have limited the use the government can make of shared
information.

Rep. Lofgren (at
right) wrote in her list of concerns that "CISPA could allow any private company
to share vast amounts of sensitive, private data about its customers with the
government."

She wrote that "CISPA does not require that data shared with the government
be stripped of unnecessary personally-identifiable information."

She wrote that "CISPA would allow the government to use collected private
information for reasons other than cybersecurity."

She wrote that "CISPA would give Internet Service Providers free rein to
monitor the private communications and activities of users on their networks."

She wrote that "CISPA would empower the military and the National Security
Agency (NSA) to collect information about domestic Internet users."

She wrote that "CISPA places too much faith in private companies, to
safeguard their most sensitive customer data from government intrusion."

She elaborated that "While information sharing would be voluntary under CISPA,
the government has a variety of ways to pressure private companies to share
large volumes of customer information. With complete legal immunity, private
companies have few clear incentives to resist such pressure. There is also no
requirement that companies ever tell their customers what they have shared with
the government, either before or after the fact."

Public Knowledge Paper Urges FCC Oversight
of BIAS Pricing Plans

4/23. The Public Knowledge
(PK) released a vaguely argued
paper
titled "Know Your Limits: Considering the Role of Data Caps and Usage Based
Billing in Internet Access Service". The paper praises flat rate price plans
for broadband internet access service (BIAS), and criticizes both usage based pricing
(UBP) plans and data caps on flat rate plans.

The PK paper argues that BIAS providers must disclose, explain, and justify their
pricing. Moreover, this must be subject to monitoring and oversight by
regulators. However, the paper avoids use of the phrase "FCC price regulation".

Randall May, head of the Free State Foundation, and a former FCC Associate General Counsel,
stated in a release that the PK is ultimately calling for "rate regulation for Internet
providers. While Public Knowledge doesn't put the matter so bluntly, or transparently, when
it calls for government ``oversight´´ of usage-based pricing, it acknowledges the government,
of necessity, would examine factors such as the cost justification for different
pricing structures, the costs of additional network investments, the relation of
various prices to additional increments of usage, the relation of prices to
usage during different periods during the day, and the like."

The PK paper does not suggest a costs plus reasonable rate of return method of price
regulation. Rather, the PK suggests oversight of the method of pricing BIAS.

The PK paper states that BIAS providers must disclose the "underlying justifications
for the pricing structures" and "must explain what goals UBP is designed to
achieve".

It states that ""regulators must vigilantly monitor UBP schemes to ensure that
service providers do not leverage market power to increase costs and suppress
demand for competing services delivered over IP."

It adds that "regulatory oversight is critical to maintaining a competitive
landscape for services delivered over IP".

In 2007 the PK and Free Press (FP) complained to
the FCC about Comcast's network management practices. The FCC ultimately issued an order in
which it asserted authority to regulate Comcast's network management practices. The Court of
Appeals then overturned that order. However, in their complaint to the FCC, the PK and FP
stated that, rather than degrading peer to peer applications, Comcast "could charge by
usage". (See, PK/FP
complaint at
page 26.)

They also wrote, citing a paper by Chris Yoo, that "network providers would most
efficiently manage their networks not by blocking applications, but by charging users for
the users' bandwidth use. If users must pay for the bandwidth they use, then the users will
better internalize the costs and benefits of their use. If the users do not pay per-bandwidth
of use, then the users have no incentive to conserve their bandwidth." (At page 27.)

Also, on April 23, 2012, the PK, FP, New
America Foundation (NAF), and Consumers Union (CU) sent a
letter to the Senate Commerce Committee (SCC) in
which they criticized "economically unjustified limitations and restrictions on data usage
imposed by certain broadband Internet access providers" and asked the SCC to "take a
closer look at the justification for data caps".

The SCC held a hearing on April 24 titled "The Emergence of Online
Video: Is It The Future?".

People and Appointments

4/23. The Senate confirmed Brian Wimes to be a Judge of the U.S. District Court
for the Eastern and Western Districts of Missouri by a vote of 92-1. See,
Roll Call No. 67.

4/23. Rep. Greg Walden (R-OR) and Rep. Anna Eshoo (D-CA), the Chairman and ranking Democrat
of the House Commerce Committee's (HCC)
Subcommittee on Communications and Technology, announced the formation of a Federal Spectrum
Working Group. They will be ex officio members. Rep. Brett Guthrie (R-KY) and Rep. Doris
Matsui (D-CA) will be co-chairs. The other members will be Rep. John Shimkus (R-IL), Rep. Mike
Rogers (R-MI), Rep. Steve Scalise (R-LA), Rep. Diana DeGette (D-CO), Rep. John Barrow (D-GA),
and Del. Donna Christensen (D-VI). All are members of the HCC.

More News

4/23. The Consumer Electronics Association (CEA) released
its Index of Consumer Technology Expectations (ICTE) for the month of April. The CEA
stated in a
release that the ICTE "fell to 84.4, down 4.5 points from March. The ICTE,
which measures consumer expectations about technology spending, is two points
higher than this time last year."

They wrote that the
base bill [18 pages in PDF] to be considered by the House on April 26-27 "risks
unduly expanding federal power, undermining freedom of contract, and harming
U.S. competitiveness in the technology sector".

First, they wrote that "While CISPA enables companies to restrict how cyber
threat information they share may be used by other entities, the bill's sweeping
immunity provision effectively denies providers the ability to make enforceable
promises to impose such restrictions on third parties."

Second, they wrote that "CISPA wisely bars the federal government from using
cyber threat information ``for regulatory purposes.´´ But the bill permits all
other governmental uses so long as ``at least one significant purpose´´ of such
use is for ``cybersecurity´´ or the ``protection of [U.S.] national security.´´
Thus, if a federal agency received a private e-mail pertaining to not only a
cyber threat but also, for instance, to a criminal violation of the Internal
Revenue Code or the Archaeological Resources Protection Act, that agency could
share the e-mail with any other governmental entity for use in criminal
prosecution." (Footnote omitted. Brackets in original.)

Third, they wrote that "CISPA creates a limited private right
of action allowing individuals whose information has been improperly used or
shared by a governmental entity to recover actual damages. But for an aggrieved
party to prevail, it must show the governmental entity ``intentionally
or willfully´´ violated the statute. Imposing such a high
burden on potential plaintiffs will under-deter governmental agencies from
negligently handling private information. Therefore, CISPA's private right
should also allow individuals to recover damages for grossly negligent
violations by governmental entities."

Fourth, they wrote that "CISPA immunizes covered private firms that share
``cyber threat information" for a ``cybersecurity purpose´´ with any other
entity -- private or governmental -- from all forms of civil and criminal
liability." But, they argue, "CISPA should only immunize companies for sharing
information when they have an objectively reasonable belief that it pertains to
a cyber threat."

Fifth, they argue that the CISPA should bar the federal government from using the
procurement process to coerce private companies. "CISPA should contain an enforceable
ban on such quid pro quos to deter potential abuse by federal agencies, some of which have
historically leveraged the procurement process to strong-arm private entities into facilitating
mass digital surveillance." (Footnote omitted.)

They also argue that the bill's definition of "cyber threat information"
should be narrowed.